A queer friend of mine who’s currently trying to make a baby via donor sperm sent me this story today and asked me whether sperm donors could be made to pay child support in Ontario. Good question.

The story my friend sent me was about the State of Kansas ordering a man to pay child support for a child of a lesbian couple who conceived via DIY insemination with his sperm. (I differentiate between physician-led insemination and Do-It-Yourself, and unlike the author of the article or the State of Kansas, I don’t consider any insemination “artificial”). The State required the parents to identify their donor when they applied for state funded health insurance for their now three year old child. Neither mom wants the donor to pay child support, and the non bio-mom’s request that she be held financially responsible was denied by the state. The donor is being asked to pay back medical expenses associated with the child, including the cost of the hospital stay for her birth.

As the article explains, a spokesperson for the Kansas Department for Children and Families said in a statement that “if a sperm donor makes his contribution through a licensed physician and a child is conceived, the donor is held harmless under state statue. In cases where the parties do not go through a physician or a clinic, there remains the question of who actually is the father of a child or children”. In an interview with CBC Radio this evening, the donor said that he believed this wouldn’t be happening if this was a straight couple, and that he considered this a serious disincentive to donating sperm.

As I told my friend, there are a few things about this story that differ from how things would go down in Ontario (his observations about heteronormativity is not one of them). First, Canadian law doesn’t distinguish between DIY and physician-led insemination. Here we’re more concerned with whether the donor is known or anonymous, i.e. sperm purchased from an international sperm bank. The other major difference here is that unlike Kansas, the province of Ontario doesn’t go after people for child support against the wishes of the custodial parent (oh and not to mention that here the state doesn’t ask us to reimburse them for hospital bills).

Despite these differences, the big question is the same: does the law consider known sperm donors to be parents? This question has yet to be answered in Ontario. In fact it is an unknown in all provinces other than Quebec where the Civil Code explicitly recognizes the intended “parental project”. The question of sperm donor rights (and presumably financial responsibilities) is at issue in an upcoming family law trial in Northern Ontario where a sperm donor is now requesting rights of access to the child of two lesbian moms. In both the Kansas and Ontario cases the parties signed a contract identifying their intentions that the donor not be considered a father and the validity of these contracts remains to be seen.

So I had good news and bad news for my friend. The bad news is that yes sperm donors in Ontario could still potentially be ordered to pay child support. But the good news is that it wouldn’t happen against the wishes of the parents.

Comments

It seems to me that the crux of the issue is this: “When Bauer was diagnosed in March with what she calls “a significant illness” that prevents her from working, Schreiner sought health insurance for their daughter from the state.” So it isn’t child support per se we are talking about, but Ms. Bauer’s eligibility for assistance from the state. The sperm donor may have disclaimed any responsibility vis a vis Ms. Bauer, but what appears to be the problem, (from what little information is contained in the article) is that the criteria for such assistance from the state are such that the non-custodial parent can later be required to reimburse the state. I imagine the intent was that a single mother should not be prevented from being granted such assistance, but that an absent father should not be exempt from his support responsibilities and the state should be able to seek reimbursement from him. It may simply be the case that the law was drafted without taking the situation of the sperm donor into account, and that this particular situation is an unintended consequence. The question to ask, then, is whether there are any lacunae in Canadian law that could affect sperm donors. Here in NB there is talk of introducing a catastrophic drug coverage plan (whether this actually materializes I don’t know) – but if there were such a program, and it contained some sort of means testing for coverage, and the income of a non-custodial parent could be taken into account in assessing eligibility, I wonder whether we might not end up with a similiar problem. An interesting article, and thanks for bringing the issue to the public’s attention.

In Ontario, people receiving social assistance are “As a condition of eligibility, applicants and recipients are, with certain exceptions, required to make reasonable efforts to pursue child or spousal support to which he/she, or a dependent, may be entitled.”
This is not exactly forcing people to pursue support but “If reasonable efforts are not being made to pursue support, assistance may be denied or reduced. The reduction of assistance would be equal to the amount of the support that would have been available, had reasonable efforts been made to pursue it.”
There are exceptions but it is not uncommon for OWA recipients to be faced with the choice of having their benefits reduced or making efforts to pursue child support.